KEVIN STOUT VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)(CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3623-14T1
A-2478-16T1
KEVIN STOUT,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
_______________________________
Submitted (A-3623-14) September 28, 2016 –
Remanded November 15, 2016
Before Judges Alvarez and Accurso.
Argued (A-3623-14 and A-2478-16) March 12, 2018 -
Decided July 23, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from the New Jersey State Parole
Board.
Pierre Chwang argued the cause for appellant
(Rutgers Constitutional Rights Clinic,
attorneys; Ronald K. Chen, on the brief;
Kevin Stout, on the pro se brief).
Christopher C. Josephson, Deputy Attorney
General, argued the cause for respondent
(Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer and Lisa
A. Puglisi, Assistant Attorneys General, of
counsel; Christopher C. Josephson, on the
briefs).
PER CURIAM
In these back-to-back cases, which we have consolidated for
purposes of this opinion, Kevin Stout appeals from the February
25, 2015 final decision of the New Jersey State Parole Board
denying him parole (A-3623-14), and the Board's January 25, 2017
final decision again denying parole and establishing a future
parole eligibility term (FET) of sixty months (A-2478-16). For
reasons we explain, we dismiss the appeal in A-3623-14 as moot
and affirm the decision in A-2478-16 denying parole and
establishing a sixty-month FET.
This case has a protracted and unusual procedural history.
The facts, however, are easily summarized. In the course of a
rapidly escalating series of violent armed robberies, Stout shot
a sixty-four year old shopkeeper in the face, killing her, while
robbing a small, neighborhood variety store in the middle of the
afternoon. He was nineteen and on parole when he committed the
murder. He was not apprehended until a month later, when
engaged in yet another armed robbery, this time of a laundromat.
Investigation reports note Stout was struggling with an officer
and trying to get a gun from his pocket when another officer
intervened and helped subdue Stout. The gun the officers
2 A-3623-14T1
removed from Stout's pocket was "fully loaded and the hammer
cocked."
Stout was convicted by a jury in 1982 of the murder of the
shopkeeper and sentenced to life imprisonment with a minimum
term of twenty-five years, consecutive to a ten-year term he was
then serving for the armed robbery of the laundromat. During
his first eighteen years in prison he accumulated a disciplinary
record of forty-seven prohibited acts, eleven of them asterisk
infractions. See N.J.A.C. 10A:4-4.1. He was also convicted in
1997 of possession of a controlled dangerous substance while in
prison, for which he received a five-year sentence. Stout's
last disciplinary infraction was in November 2000, nearly
eighteen years ago. He is incarcerated at Northern State Prison
where he maintains gang minimum custody status. See N.J.A.C.
10A:9-4.3(d).
Stout first became eligible for parole in 2009 after nearly
thirty years in prison. The Parole Board denied parole and set
a fifteen-year (180-month) FET. We affirmed the denial of
parole in 2011 under the standard of the 1979 Parole Act
applicable in Stout's case, that parole must be granted unless
shown by a preponderance of the evidence that there is a
substantial likelihood he will commit another crime if released.
N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, c. 213, § 1;
3 A-3623-14T1
N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, § 2;
see In re Trantino (Trantino VI), 166 N.J. 113, 126 (2001)
(explaining application of the 1979 Act).
We reversed the fifteen-year eligibility term, however,
noting it "substantially exceeded the presumptive twenty-seven
month limit by more than twelve years." Stout v. N.J. State
Parole Bd., No. A-5064-09 (App. Div. June 7, 2011) (slip op. at
8). We found the Board's reasons, that Stout was "unable to
identify the causes of [his] violent behavior"; had "failed to
develop adequate insight into [his] criminal personality
characteristic"; "failed to appropriately and adequately address
a contributing factor (substance abuse) of [his] violent
behavior"; "committed a new criminal offense during [his]
incarceration"; and "continued [his] anti-social, maladaptive
behavior during [his] incarceration by committing numerous
serious institutional infractions," "unpersuasive to warrant the
imposition of an FET nearly seven times the presumptive term."
Id. at 8-10. Although acknowledging the Board's findings
"clearly warrant serious notice," we concluded an FET of fifteen
years was "manifestly excessive, even in light of the
confidential materials" available to the Board, and "did not
properly account for the temporal remoteness of Stout's
4 A-3623-14T1
criminality and prohibited acts, the last occurring in 1997 and
2000 respectively." Id. at 10.
On remand in 2012, the Board re-imposed the fifteen-year
FET "employing precisely the same factors it employed in 2008."
Stout v. N.J. State Parole Bd., No. A-5695-11 (App. Div. Jan. 7,
2014) (slip op. at 3). We reversed in 2014. Noting the Board
was not free "to simply reinstate its prior decision"
establishing an FET we had deemed "manifestly excessive," we
again remanded to the Board "to impose an appropriate term in
conformity with law." Id. at 3, 6.
A three-member panel of the Board reconsidered the fifteen-
year FET for the second time in February 2014, reducing it by
five years. Upon application of work and minimum custody
credits, the then ten-year FET, begun on Stout's first
eligibility date in 2009, was scheduled to expire on July 20,
2014. The full Board affirmed the five-year reduction of
Stout's FET ten days after it had expired. Stout v. N.J. State
Parole Bd., Nos. A-0034-14 and A-3623-14 (App. Div. Nov. 15,
2016) (slip op. at 5). As we explained on Stout's appeal of
that decision:
Because Stout was already again eligible for
parole at the time the Board rendered its
final decision on remand, a two-member Board
panel considered his case again on July 25,
2014, using an updated confidential
5 A-3623-14T1
psychological assessment. The members
split, one voting that Stout be paroled and
the other that parole be denied.
Accordingly, pursuant to N.J.A.C. 10A:71-
1.3(e), a third member was added, and on
September 24, 2014, the now three-member
panel voted to deny parole and set a thirty-
six-month FET. Stout appealed its decision
to the full Board, which affirmed the
panel's decision on February 25, 2015.
[Ibid.]
We considered Stout's appeals from the Board's July 30,
2014 final decision on second remand establishing the ten-year
FET and its February 25, 2015 final decision denying parole and
imposing a thirty-six-month FET together in the fall of 2016.
By that time, the Board's February 2015 thirty-six-month FET had
also expired, and we were advised the Board had recently again
denied Stout parole and established a sixty-month FET, which was
not then final pending administrative appeal. Id. at 2. As
Stout had already served out the reduced ten-year FET and the
three-year FET the Board subsequently imposed on expiration of
that ten-year term, we determined there was no effective relief
we could render regarding the FET we remanded to the Board in
2011 and 2014 and dismissed that matter as moot. Id. at 6.
Although acknowledging the same might be said of Stout's
appeal from the Board's February 25, 2015 decision, we declined
to dismiss it because even though the FET had expired, we had
6 A-3623-14T1
yet to consider the Board's decision to deny Stout parole at
that time. Ibid. Having been advised in response to our
inquiry that the Board had again denied Stout parole and
established a five-year (sixty-month) FET, which began to run on
December 3, 2015, subject to internal appeal and thus not yet
final, we deferred decision on the Board's February 25, 2015
decision to deny parole for consolidation with the matter then
pending before the Board upon the filing of a notice of appeal
in that case. Id. at 6-7. Our aim was to avoid continuing a
cycle that had obviously "thwarted effective appellate review of
this case for several years." Id. at 7.
Although we had intended to hear both cases last term, they
were not ready for submission to the court until last fall.
After reviewing the briefs, we determined, sua sponte, to
appoint counsel for Stout to assist him in presenting the issues
raised by the appeals. Accordingly, we appointed Ronald K. Chen
of the Rutgers Constitutional Rights Clinic to represent Stout,
permitted the filing of supplemental briefs and listed the
appeals for oral argument.1 We now have before us, as counsel
1
We note here our gratitude to Professor Chen for accepting
appointment as counsel for Stout. We appreciate his
professionalism and zealous advocacy and that exhibited by the
students he supervised who participated in presenting these
appeals, including Mr. Chwang, who argued the cause.
7 A-3623-14T1
for Stout describes them, "two separate denials of parole on two
non-identical (but functionally overlapping) administrative
records," presenting the same issue, that is, whether a
preponderance of the credible evidence in the record supports
the Parole Board's determination that there is a substantial
likelihood that Stout will commit another crime if released on
parole.
The Parole Board documents its decisions using a checklist
of "mitigating factors" and "reasons for denial." In its
September 24, 2014 decision denying Stout parole, the Board
panel checked off the following mitigating factors:
 Participation in programs specific to
behavior.
 Participation in institutional programs.
 Average to above average institutional
reports.
 Institutional adjustment has been favorable.
(Last infraction: 11/11/00)
 Attempt made to enroll and participate in
programs but was not admitted.
 Minimum custody status achieved/maintained.
G[ang] M[inimum]
 Commutation time restored.
The Board checked off the following reasons for denial:
 Prior criminal record noted.
8 A-3623-14T1
 Nature of criminal record increasingly more serious.
 Current opportunity on parole revoked for the
commission of new offenses.
 Prior opportunities on probation/parole have failed to
deter criminal behavior.
 Prior opportunity on parole has been violated in the
past.
 Prior incarceration did not deter criminal behavior.
 Institutional infractions serious in nature, resulting
in loss of commutation time; confinement in detention
and Administrative Segregation. Last infraction
11/11/00.
 Insufficient problem resolution. Specifically, Lack
of insight into criminal behavior. As demonstrated by
Panel interview; Documentation in case file and
Confidential material/professional report relied on.
 Commission of a crime while incarcerated.
 Risk assessment evaluation. LSI-R [Level of Service
Inventory-Revised score] 24
In its February 25, 2015 decision affirming the denial of
Stout's parole, the Board added the following narrative remarks:
The Board finds that the Board panel
conducted your hearing to determine your
suitability for parole. The Board panel had
the ability to ask you questions and review
your case in order to evaluate whether you
have gained the problem resolution necessary
in order to ensure that you will abide by
conditions of parole if released. The Board
panel determined, based on your interview
and its review of the file, that you do not
demonstrate the insight necessary in order
to be a viable candidate for parole release.
9 A-3623-14T1
Although you may believe that you have made
strides in this area, and feel that you
should have been paroled because there are
no new negative factors in your case, the
Board panel found otherwise. Based on its
review, the Board concurs with the Board
panel's determination and, therefore, your
contention is without merit.
. . . .
Based upon consideration of facts cited
above, the Board finds that the Board panel
has considered the aggregate of information
pursuant to N.J.A.C. 10A:71-3.11 and fully
documented and supported its decision
pursuant to N.J.A.C. 10A:71-3.18(f).
Additionally, in assessing your case, the
Board concurs with the determination of the
Board panel that a preponderance of the
evidence indicates that there is a
substantial likelihood that you would commit
a crime if released on parole at this time.
Accordingly, the Board affirms the Board
panel's September 14, 2014 decision to deny
parole and establish a thirty-six (36) month
future eligibility term. You will be
scheduled for a subsequent parole release
hearing when it is appropriate.
In its September 15, 2016 Notice of Decision denying Stout
parole, the full Board checked off the following mitigating
factors:
 Infraction free since last panel.
 Participation in programs specific to
behavior.
 Participation in institutional programs.
10 A-3623-14T1
 Institutional reports reflect favorable
institutional adjustment.
 Positive adjustment to TC program/
Assessment Center/ RCRP.
 Minimum custody status achieved/maintained.
The Board checked off the following reasons for denial:
 Serious nature of offenses.
 Prior offense record is extensive.
 Offense record is repetitive.
 Nature of criminal record increasingly more serious.
 Committed to incarceration for multiple offenses.
 Current opportunity on parole revoked for the
commission of new offenses.
 Prior opportunities on probation/parole have failed to
deter criminal behavior.
 Prior opportunity on probation/parole has been
violated in the past for technical violation(s).
 Prior incarceration did not deter criminal behavior.
 Institutional infractions serious in nature, resulting
in loss of commutation time; confinement in detention
and/or Administrative Segregation. Last infraction
11/11/2000 *204.
 Insufficient problem resolution. Specifically, lack
of insight into criminal behavior.
Other: Inmate presents as a troubled individual who
does not understand his past violent decision-making.
Further, the Board finds the inmate has only a
superficial understanding [of] the triggers to his
11 A-3623-14T1
addiction[,] which he claims was the driving force to
his criminality and affected him during his
incarceration. Inmate claims he is matured but
contrary to that assertion was a presentation [rife]
with uncertain and unclear answers resulting in no
substantive insight articulated.
As demonstrated by interview; documentation in case
file and confidential material/professional report.
 Risk assessment evaluation. LSI-R [Level of Service
Inventory-Revised score] 26
In its January 25, 2017 decision affirming Stout's denial
of parole, the Board added the following narrative remarks:
In your appearance before the Board,
the Board asked you questions and reviewed
your case in order to evaluate whether you
have gained the problem resolution necessary
in order to ensure that you will abide by
the law if released. Additionally, the
Board relied on confidential material, and
pursuant to N.J.A.C. 10A:71-2.2(c),
identified for the record the nature of the
confidential information. The Board
determined, based on your interview and its
review of the file, that you do not
demonstrate the insight necessary in order
to be a viable candidate for parole release.
Although you may believe that you have made
strides in this area, the Board finds
otherwise. Specifically, the Board finds
that after thirty-five (35) years of
incarceration, you present as superficial in
your insight and are unable to recognize the
root causes of your violent behavior other
than to infer that you were influenced by
others and were attempting to "fit in" with
your peers. The Board further finds that
your unspecific answers are demonstrative of
your failure to fully understand the
severity of your violent actions, and that
you are ill-equipped for parole release and
12 A-3623-14T1
in need of additional programming and
counseling. The Board, therefore, finds
your contention that the Board unfairly
relied upon the same factors as it has
relied upon in the past to be without merit.
. . . .
Based upon consideration of the facts
cited above, the Board finds that it has
considered the aggregate of information
pursuant to N.J.A.C. 10A:71-3.11 and fully
documented and supported its decision
pursuant to N.J.A.C. 10A:71-3.20(e).
Therefore, the Board affirmed its
determination rendered on July 20, 2016 that
a preponderance of the evidence indicates
that there is a substantial likelihood that
you would commit a crime if released on
parole at this time; that parole be denied;
and that a future eligibility term
established pursuant to N.J.A.C. 10A:71-
3.21(a), (b) and (c) is clearly
inappropriate due to your lack of
satisfactory progress in reducing the
likelihood of future criminal behavior. The
Board further affirmed its determination
rendered September 15, 2016 to establish a
60 month future eligibility term pursuant to
N.J.A.C. 10A:71-3.21(e). You will be
scheduled for a subsequent parole hearing
when it is appropriate.
Stout appeals, contending the Parole Board abused its
discretion by failing to sufficiently articulate its findings,
thus precluding meaningful judicial review, that it failed to
consider how long ago he committed his violent crimes and that
its finding he "lacked 'insight' into his prior criminal
behavior thirty-seven years ago applies an amorphous standard
13 A-3623-14T1
that is not related to the current risk of recidivism." Stout
also contends the Board has acted arbitrarily and capriciously
in "repeatedly impos[ing] excessive future eligibility terms" on
him. We reject those arguments.
We start our analysis understanding the Parole Board's
decisions are highly "individualized discretionary appraisals,"
Trantino VI, 166 N.J. at 173 (2001) (quoting Beckworth v. N.J.
State Parole Bd., 62 N.J. 348, 359 (1973)), entitled to both a
presumption of validity, see In re Vey, 272 N.J. Super. 199, 205
(App. Div. 1993), aff'd, 135 N.J. 306 (1994), and our deference
to "its expertise in the specialized area of parole
supervision," J.I. v. N.J. State Parole Bd., 228 N.J. 204, 230
(2017). We may not upset the determination of the Parole Board
absent a showing that it was arbitrary, capricious, or
unreasonable; that it lacked fair support in the evidence; or
that it violated legislative policies. Trantino v. N.J. State
Parole Bd., 154 N.J. 19, 24-25 (1998). The burden is on the
inmate to show the Board's actions were unreasonable. McGowan
v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.
2002).
Applying those standards here, notwithstanding our prior
misgivings about the Parole Board's imposition of FETs in this
matter, we are satisfied the Board's most recent denial of
14 A-3623-14T1
parole was based on a proper analysis of the factors it deemed
relevant and was supported by sufficient credible evidence in
the record. We likewise find no basis to overturn the Board's
sixty-month FET.
In his supplemental brief, Stout contends the factors
relied on by the Parole Board to deny him parole "can be grouped
into two general categories" consisting first of his "prior
criminal history and early record of institutional infractions,"
which he does not dispute, but notes occurred either on or
before the date of the murder in 1980, or else more than
seventeen years ago during his incarceration, and second, of the
Board's finding "he had not demonstrated sufficient 'insight
into [his] violent criminal behavior'" which led the Board to
conclude he "had 'insufficient problem resolution' skills."
He argues the Board "failed to explain why the most recent
17 year record of completely acceptable behavior," combined with
the mitigating factors the Board found, including participation
in institutional programs and those targeted to his specific
behavior, average to above average institutional reports
reflecting favorable institutional adjustment and attaining gang
minimum custody status, "are not more reliable predictors of the
current likelihood of reoffending, than those factors it cited
that are qualitatively and quantitatively more remote in time
15 A-3623-14T1
and circumstance." He contends the Board's "failure to address
through articulated analysis the logical inference that the most
recent 17 year record of commendable conduct . . . is less
indicative of the current risk of recidivism that he presents,
compared to conduct that occurred up to 37 years ago, is a fatal
deficiency" in the findings.
Those arguments, in our view, would have more resonance
were we looking only at the Board's February 2015 affirmance of
the split panel's vote to deny Stout parole. The September 24,
2014 notice of the panel decision is devoid of any comment,
consisting only of a series of checkmarks noting the mitigating
factors the panel found and its reasons for denying parole.
Although that may suffice in some circumstances, we could not
find it would here in light of the seriousness of Stout's crimes
and his mixed record in prison. The Board's narrative in its
February 2015 final decision offers no insight into the question
Stout poses in his supplemental brief, namely, why did the
majority of the three-member panel find Stout's most recent
seventeen-year commendable record a less "reliable predictor[]
of [his] current likelihood of reoffending" at age fifty-seven
than the crimes he committed when he was nineteen and a drug
addict, even taking into account Stout's risk assessment
16 A-3623-14T1
evaluation score of twenty-four, indicating a medium risk of
recidivism, and why did the full Board affirm that finding.
Accordingly, were we looking only at the Board's 2015
decision to deny Stout parole, we would vacate that decision and
remand for a statement of reasons explaining the Board's
findings. See Kosmin v. New Jersey State Parole Bd., 363 N.J.
Super. 28, 40 (App. Div. 2003). But Stout's appeal of that 2015
decision, which we deferred deciding in response to his request
that we take judicial notice the Board had again denied him
parole in July 2016, is now certainly moot in light of the Board
having decided to deny parole following the 2016 hearing before
the full Board. A remand to the Board to explain a decision
superseded by one which we also review here would be pointless.
Accordingly, we dismiss the appeal in A-3623-14 as moot. See
Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank
Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.
Div. 2001)) (explaining an "issue is 'moot when our decision
. . . , when rendered, can have no practical effect on the
existing controversy'").
The Board's Notice of Decision following Stout's parole
hearing before the full Board does not suffer the same
deficiencies as the Notice of Decision issued by the Board panel
in September 2014. As we noted, the Board included in its
17 A-3623-14T1
September 15, 2016 Notice of Decision a record of its
impressions of Stout following the full Board hearing, that he
presented as "a troubled individual who does not understand his
past violent decision-making" and "has only a superficial
understanding [of] the triggers to his addiction[,] which he
claims was the driving force to his criminality and affected him
during his incarceration."
Moreover, the Board provided Stout a detailed seven-page
decision explaining its reasons for imposing a sixty-month FET
following the July 2016 full Board hearing. In that decision,
the Board reviewed Stout's juvenile record, which began at age
fourteen when he was arrested, and later adjudicated delinquent,
for malicious damage, followed by adjudications for possession
of marijuana, breaking and entering – larceny, breaking and
entering, assault and battery, possession of stolen property,
trespassing and attempted breaking and entering. Stout was
twice afforded juvenile parole and twice returned as a parole
violator.
Following his eighteenth birthday, Stout was convicted of
robbery and sentenced to an indeterminate term of eight years in
the custody of the Department of Corrections. He was paroled a
year later. Two months after being released on parole, Stout
murdered the shopkeeper and was apprehended a month later in the
18 A-3623-14T1
course of the armed robbery of the laundromat. The Board also
noted that while in prison, Stout was indicted in 1995 for
possession of CDS, possession of CDS with intent to distribute,
distribution of CDS and conspiracy, eventually entering a
negotiated plea to possession.
In laying out its reasons for the sixty-month FET, the
Board noted the serious nature of the offense, that Stout's
offense history was both extensive and repetitive, his criminal
record was increasingly more serious, he was incarcerated for
multiple offenses committed on different occasions, that he was
on parole when he committed the murder, had previously violated
parole and that both incarceration and opportunities for
community supervision failed to deter his criminal behavior.
The Board also noted that although Stout's last infraction, *204
use of prohibited substances, was almost eighteen years ago, the
number and seriousness of his infractions led it to conclude his
"overall institutional record is representative of a disruptive
and anti-social individual."
In explaining its finding that Stout lacked insight into
his violent criminal behavior and minimized his anti-social
decision-making, the Board wrote:
The [hearing the] Board conducted on
July 20, 2016, marked the third parole
eligibility hearing conducted in your case.
19 A-3623-14T1
The record reflects that at the age of
nineteen (19) you committed the offense of
Murder. The murder involved you shooting an
elderly woman in the face during the course
of a robbery. Of note is the fact that you
were on parole for a prior robbery when you
committed murder. Additionally, you were
not arrested immediately after killing the
victim and you committed an additional
robbery roughly four (4) weeks later.
You have since been incarcerated for
thirty-five (35) years and are currently
fifty-four (54) years of age. The Board
conducted a hearing in your case to
determine your suitability for parole
release at the current time and assess
whether there is a substantial likelihood
that you would commit a new criminal offense
if released on parole. To make such a
highly individualized discretionary
appraisal in your case, the Board engaged
you in discussion for an extended period of
time, nearly three (3) hours. The Board
asked questions regarding your current state
of mind and your view and perception of the
type of person you believe you were in the
years leading up to the present
incarceration. You were also asked about
insight that you may have gained from the
programming/counseling you have thus far
completed during your incarceration. The
Board considered your understanding of your
past criminal conduct and determined whether
you possess the ability to recognize and
appropriately process factors that could
affect you to behave in a violent and
criminal manner in the future. The manner
in which you will conduct yourself and
address/process yourself if a member of
society was an important aspect of the
Board's decision in assessing the
possibility of future criminal behavior on
your part.
20 A-3623-14T1
The Board was not impressed with the
presentation that you put forth to them.
Much like previous hearings, the insight you
articulated was extremely superficial and
demonstrated that you do not possess a deep
thinking into you[r] past actions and have
not yet begun a substantive introspection
into why you chose to behave in a violent
manner during your formative years. The
Board finds that you do not fully understand
why you have behaved in a criminal manner
leading to the murder regardless of the
programming and counseling you have
completed. At the hearing you were asked
multiple times why you chose to commit a
violent murder during the course of a
robbery, while on parole for a previous
robbery. You described yourself as a "lost
person" that made "bad choices" and that you
were a "drug addict." Regarding the violent
behavior you exhibited in the years prior to
the murder, you indicated that you were
"trying to fit in" that you were affected by
"peer pressure" and that you were "trying to
be something that you weren't." You did not
expound in any greater detail on these
details you provided. Later in your hearing
you stated your criminal behaviors were not
due to your upbringing and that you believe
you behaved as a result of "the choices of
my friends." Asked about your last
infraction, the use of heroin in 2000, you
stated that you were "dealing with my
reality . . . the demons in prison." You
admitted that you were an addict and would
use CDS three (3) to (4) times per week.
Asked what your triggers are for a possible
drug relapse you stated "the smell of
heroin," "missing my family" and "being
around people who get high."
The Board would expect that after years
of incarceration and program participation
you would be able to express and articulate
yourself in a manner that would demonstrate
21 A-3623-14T1
that you understand your past actions and
decision making and that you are prepared to
re-integrate yourself into society crime
free. Asked about insight you believe you
have gained from programming, you noted
Focus On the Victim and Thinking for a
Change. Asked to articulate what
specifically you learned from the programs,
you stated "I have matured," "I am not the
same person" and that you have "finally
arrived as a human being." Again, you did
not further expound upon these non-specific
answers. That was particularly concerning
taking into consideration you self-praised
your perceived "maturity" yet you committed
a CDS offense as an inmate at the age of
thirty-four (34). As noted the Board found
such answers to be superficial and clearly
not representative of someone with insight
and instead representative of someone still
searching themselves as to why they behaved
in the violent manner they have. You
referenced numerous times that you believe
your behaviors were to fit in and that
others influenced your actions. However,
you presented as not understanding as to why
your desire to fit in socially impelled you
to behave in an extremely violent manner.
Overall, the Board finds that you
continue to be only superficial in your
understanding of your past behaviors and
unaware as to why you led a life of crime,
leading to the murder. More work needs to
be done by you, through programming and
counseling, to gain an introspection as to
why you have chosen to act and react in the
manner you have. After over three (3)
decades in prison you present as someone who
truly does not understand the severity of
his [crimes]. It is clear you must address
the issues described within this Notice with
further counseling in an effort to gain
insight into your criminal decision-making.
Therefore, the Board finds that you require
22 A-3623-14T1
additional time to address deficiencies in
your lack of insight as evidenced by your
presentation and non-specific answers you
provided to Board questioning.
Stout in his supplemental brief argues "insight" is not
among the twenty-three factors listed in N.J.A.C. 10A:71-
3.11(b), the regulation that guides the Board in assessing an
inmate's likelihood of recidivism. He complains "this malleable
and vague concept is too amorphous to allow meaningful judicial
review," and notes "a number of obvious reasons, unrelated to
current propensity to reoffend, why an inmate in his mid-50s
would have difficulty articulating the motivating causes for his
actions decades before when he was a 19 year old drug addict."
Stout argues we should reject the Board's reliance on "the
elastic concept of lack of 'insight'" into prior criminal
behavior as predictive of an inmate's current propensity to
reoffend as ad hoc rule-making in violation of Metromedia, Inc.
v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984). We
reject those arguments as incompatible with the Legislature's
delegation to the Parole Board.
We have already here acknowledged that the Board's reliance
on an inmate's "lack of insight into his violent criminal
behavior" untethered to specific facts would likely be an
insufficient basis to support denial of parole. But that is not
23 A-3623-14T1
to say that it is insignificant to the Board's assessment of an
inmate's propensity to further criminality. An inmate's own
understanding or insight into the reasons for his violent
criminal behavior figures into at least three of the factors
included in N.J.A.C. 10A:71-3.11(b): (11) Documented changes in
attitude toward self or others, (12) Documentation reflecting
personal goals, personal strengths or motivation for law-abiding
behavior and (17) Statements by the inmate reflecting on the
likelihood that he or she will commit another crime; the failure
to cooperate in his or her own rehabilitation; or the reasonable
expectation that he or she will violate conditions of parole.
Here, the Board explained in considerable detail Stout's
inability to identify and articulate the underlying reasons for
his having become entrenched, beginning at age fourteen, in a
life of crime, with no apparent appreciation or regard for the
consequences of his choice for himself or others. Neither
incarceration nor parole had any apparent effect on his conduct.
Peer pressure and falling in with the wrong crowd would hardly
appear an adequate explanation for the brutal and callous
killing of an elderly shopkeeper not resisting his efforts to
rob her small variety store in broad daylight. Moreover, his
conviction and sentence to life in prison does not appear to
have altered his outlook, as his forty-seven disciplinary
24 A-3623-14T1
infractions committed during his first twenty years in prison
attest. While no longer apparently using drugs, he acknowledged
"the smell of heroin" or "being around people who get high,"
were relapse triggers for him, leaving the Board in doubt of his
ability to remain drug-free if paroled. Given Stout's claim
that his crimes were driven by addiction, the Board had good
reason to be concerned by those answers.
The Parole Board is charged "with the difficult and
sensitive task of evaluating the advisability of parole
release." In re Hawley, 192 N.J. Super. 85, 92-93 (App. Div.
1983) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 10 (1979)), aff'd 98 N.J. 108 (1984). "The
decision turns on a 'discretionary assessment of a multiplicity
of imponderables, entailing primarily what a man is and what he
may become rather than simply what he has done.'" Greenholtz,
442 U.S. at 10 (quoting Sanford H. Kadish, The Advocate and the
Expert — Counsel in the Peno-Correctional Process, 45 Minn. L.
Rev. 803, 813 (1961)). We are in no position to second-guess
the Board's decision to weigh more heavily Stout's crimes and
poor adjustment to prison in assessing his prospects for
recidivism than his recent good behavior in light of his
inability to offer the Board any greater insight into his
motives for either.
25 A-3623-14T1
As our Supreme Court has recently noted, "[s]tripped to its
essentials, a parole board's decision concerns a prediction as
to an inmate's future behavior, a prognostication necessarily
fraught with subjectivity." Acoli v. N.J. State Parole Bd., 224
N.J. 213, 222 (2016) (quoting Trantino VI, 166 N.J. at 201(Baime, J.A.D. (temporarily assigned), dissenting)). As Judge
Baime observed, "[t]he aims of punishment are several, but the
hope is that the sentence, mild or severe, will reshape the
offender." Id. at 216 (internal citation omitted). We are
satisfied there is sufficient credible evidence in the whole
record to support the Board's finding that incarceration has not
reshaped Stout and that there exists a substantial likelihood he
would commit another crime if released on parole at this time.
We likewise find no merit in Stout's argument that the
Board's decision to establish a sixty-month FET was arbitrary
and capricious. N.J.A.C. 10A:71-3.21(d) permits the Board to
impose an FET that differs from the presumptive schedule if that
schedule is clearly inappropriate as a result of the inmate's
lack of progress in reducing the likelihood of future
recidivism. In imposing an FET in excess of the presumptive
term, the panel must consider the factors enumerated in N.J.A.C.
10A:71-3.11 that pertain to eligibility for parole. The Board's
decision makes clear it did so here. Further, the Board
26 A-3623-14T1
established the term understanding it would be reduced by
commutation, earned work and minimum custody credits. Counsel
for the Parole Board has advised that application of those
credits in Stout's case will reduce his sixty-month FET to
thirty-eight months.
We find none of petitioner's additional arguments to be of
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
27 A-3623-14T1